Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Student Wins Injunction to Wear 'Be Happy, Not Gay' T-shirt at School

A federal appeals court has ordered that an Illinois student be allowed to wear a T-shirt that says "Be Happy, Not Gay" to protest the annual Day of Silence in support of gay students.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, unanimously rejected arguments from the Indian Prairie school district in suburban Chicago that it should be able to bar a student from wearing the shirt on the school day after the Day of Silence because it would be derogatory and offensive to some students.

" 'Be Happy, Not Gay' is only tepidly negative; 'derogatory' or 'demeaning' seems too strong a characterization," U.S. Circuit Judge Richard A. Posner said in the opinion for the court in Nuxoll v. Indian Prairie School District No. 204. "As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says 'Be Happy, Not Gay' would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere."

"Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech," the judge added .

I wrote this story in this week's Education Week discussing the Day of Silence and some of the legal issues that have arisen out of it, including the Illinois case. I have a related blog post here.

The Day of Silence is scheduled for this Friday, April 25. The Day of Truth, an alternative event sponsored by the Alliance Defense Fund, which is when Illinois student Alexander Nuxoll wants to wear his "Be Happy, Not Gay" shirt, is scheduled for Monday, April 28.

UPDATE: My longer Education Week story on the ruling is now available here.

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